Summary
In State v. St. Clair, Mo.Sup., 261 S.W.2d 75, decided under the same statute as Franck, it was held that those facts must be alleged and proved before the habitual criminal statute may be invoked.
Summary of this case from State v. BryantOpinion
No. 43737.
October 12, 1953.
APPEAL FROM THE CIRCUIT COURT OF THE CITY OF ST. LOUIS.
William K. Standard II, St. Louis, for defendant-appellant.
John M. Dalton, Atty. Gen., Julian L. O'Malley, Asst. Atty. Gen., for respondent.
A jury found defendant guilty of first degree robbery by means of a dangerous and deadly weapon, found that defendant had six prior felony convictions as charged in an amended information, and fixed his punishment at life imprisonment in the penitentiary. Defendant's sole contention on this appeal is that the trial court committed reversible error in admitting in evidence certain records offered for the ostensible purpose of establishing prior felony convictions in Arizona and Texas under the Habitual Criminal Act.
The state showed that on August 27, 1951, defendant took from the assistant pastor, money belonging to his church, and used in the perpetration of the robbery a sword and a knife. Defendant was positively identified. He offered no evidence.
The trial court, over defendant's objection, admitted duly authenticated records from the State of Arizona. These records, read to the jury, showed that on March 5, 1925, defendant was convicted in Arizona of forgery and was sentenced to from 1-5 years in the penitentiary; that on May 15, 1925, he "Escaped while working as a trusty outside". Under the heading of "Remarks" was this: "Detainer released 7-19-1930 by Superintendent, Arizona State Prison." Also admitted, over defendant's objection, were duly authenticated records of the State of Texas. These records, read to the jury, showed that on February 9, 1931, in a case numbered 5185-C, defendant was convicted of burglary and sentenced to from 2-3 years in the penitentiary and, on the same day, in a case numbered 5186-C, was convicted of another burglary and sentenced to from 2-3 years in the penitentiary, the sentence to run concurrently with that in case 5185-C; that on May 9, 1932, in a case numbered 5504-C, defendant was convicted of theft over and sentenced to two years in the penitentiary, such sentence to run "cumulative" with, and to begin at the expiration of, the sentence in case 5185-C. Under the heading "Expiration of Sentence" was this: "Rel'd from prison on Bench Warrant and ret'd to Prison with a new conviction as No. 70769." (In reading the exhibit to the jury, the words following "Warrant" were omitted.) The state also proved defendant's prior convictions in Missouri for burglary and larceny and that defendant was discharged under commutation of sentence by the governor on May 4, 1950. On the Missouri prison record, admitted to show discharge, was the notation: "Wanted by Texas State Pen. Huntsville, Texas, 11-8-47."
It is defendant's contention that the Arizona and Texas records failed to prove discharge from those penitentiaries "either upon pardon or upon compliance with the sentence" as required by the Habitual Criminal Act, RSMo 1949, §§ 556.280-556.290, V.A.M.S. If, as defendant contends, it is necessary to prove that a defendant has been discharged either upon pardon or compliance with the sentence even though the prior felony was committed in another state, then it is apparent that the state's proof failed to bring the Arizona and Texas convictions within the provisions of the Act. This, for the reason that those records failed to show a discharge from the penitentiary upon pardon or upon compliance with the respective sentences. As has been noted, the Arizona record affirmatively showed that there was neither pardon nor compliance with sentence; but, on the contrary, showed that defendant escaped some two months after his incarceration, and that he was never returned to the Arizona penitentiary. As has also been noted, the Texas record showed no discharge from either of the sentences; but, on the contrary, showed only a temporary release from the penitentiary on a bench warrant (in all probability issued to permit the presence of defendant in court to answer the charge on which he was convicted on May 9, 1932).
Section 556.280 provides in part that "If any person convicted of any offense punishable by imprisonment in the penitentiary, * * * shall be discharged, either upon pardon or upon compliance with the sentence, and shall subsequently be convicted of any offense committed after such pardon or discharge, he shall be punished as follows: * * *." (Italics ours.) We have repeatedly held that an information or an indictment charging a defendant with a prior conviction under the Act must allege, and that the proof must show, not alone the prior conviction but also that defendant was discharged either by pardon or by compliance with the sentence and, of course, that the offense for which he is being tried was committed after such prior conviction and discharge. State v. Harrison, 359 Mo. 793, 794, 223 S.W.2d 476, 478[1]; State v. Sumpter, 335 Mo. 620, 622[1], 73 S.W.2d 760, 761[2]; State v. Schneider, 325 Mo. 486, 493, 29 S.W.2d 698, 700. "Several of our decisions have speculated on the reasons underlying the requirement in our statute that a second offender must have been discharged from the prior sentence either by pardon or compliance therewith. The Austin [State v. Austin, 113 Mo. 538, 21 S.W. 31], Asher [State v. Asher, Mo. Sup., 246 S.W. 911] and Sumpter cases recognize the reasoning of the Wood case [Wood v. People, 53 N.Y. 511] from New York, * * * which held that until the prior sentence had been fully discharged by pardon or expiration, there always would be the possibility that it might be adjudged void ab initio, as by habeas corpus or other writ, in which event the prisoner would be cleared as second offender after he had already been subjected to punishment as such." State v. Brinkley, 354 Mo. 1051, 1074, 193 S.W.2d 49, 59.
In State v. Christup, 337 Mo. 776, 85 S.W.2d 1024, 1025, defendant was charged with first degree robbery by means of a dangerous and deadly weapon, and was also charged under the Habitual Criminal Act with theretofore having been convicted and sentenced to the Colorado penitentiary for aggravated robbery. The information, in charging the prior conviction, alleged that defendant "was duly imprisoned in said penitentiary of the State of Colorado in accordance with said sentence, and that the said George Christup alias etc., escaped from said penitentiary of the State of Colorado after having served part of said sentence". It was ruled that the charge and proof did not bring the prior felony within the Act. In connection with the contention that there was no reason why the Act should not apply to escaped convicts, as well as to those discharged upon pardon or upon compliance with the sentence, the court said: "* * * whatever may have been the reason for the use of the particular words employed by the lawmakers, we are constrained to hold that the case, under the allegations of the information, is not within the act in question, it being manifest that its nonapplicability is not a distinction of construction, but the plain letter of the statute." 85 S.W.2d 1025.
The Christup case, supra, involved a felony committed in Colorado. Thus, the opinion decided that Section 556.290, dealing with offenses committed in other states, required the same proof as to discharge upon pardon or compliance as is required under Section 556.280; that is to say, that as to prior convictions in other states, it was necessary that the information or indictment allege and that the proof show a discharge either upon pardon or upon compliance with the sentence.
The state suggests that the Christ up opinion does not indicate that the contention was there made, as it is here, that the language of Section 556.290 requires the state to prove only a conviction in another state of an offense which, if committed in this state, would be punishable by the laws of this state by imprisonment in the penitentiary; that that section does not require proof of discharge by either pardon or compliance. We have examined Section 556.290 in view of this specific contention and are satisfied that the construction given the statute in the Christup case is correct. Section 556.290 provides: "Every person who shall have been convicted in any of the United States, or in any district or territory thereof, or in a foreign country, of an offense which, if committed in this state, would be punishable by the laws of this state by imprisonment in the penitentiary, shall, upon conviction for any subsequent offense, within this state, be subject to the punishment herein prescribed upon subsequent convictions, in the same manner and to the same extent as if such first conviction had taken place in a court in this state." We think the reasonable construction of this language is that the words "in the same manner and to the same extent as if such first conviction had taken place in a court in this state" refer not only to the punishment prescribed in subdivisions (1), (2), and (3) of Section 556.280, but also to the conditions prescribed in the first paragraph of Section 556.280, and thus require allegation and proof that one convicted in another state or foreign country shall have been discharged "either upon pardon or upon compliance with the sentence".
It follows that the Arizona records, which affirmatively showed an escape and not a discharge upon pardon or compliance with sentence, were wholly inadmissible for any purpose. It also follows that the Texas records were inadmissible without further proof of defendant's discharge by pardon or compliance with the sentences.
The question remains as to whether the admission of these records constituted reversible error. Under the specific provisions of the Habitual Criminal Act, proper proof of, and the jury's finding of, only one conviction of a prior felony and discharge either upon pardon or upon compliance with the sentence, made it mandatory upon the jury in this case to assess defendant's punishment at life imprisonment. Two prior felony convictions in Missouri were sufficiently alleged and proved. The court's instructions required the jury to find all six prior felony convictions charged in the information. Thus the jury found, upon sufficient allegation and proof, that defendant had been convicted, sentenced, imprisoned, and discharged under commutation of sentence by the governor, of the two Missouri felonies charged. The court's instructions directed the jury not to consider proof of prior convictions in determining the guilt of the defendant of the charge for which he was on trial.
Even so, however, the fact remains that proof of the prior Arizona conviction for forgery showed on its face that it was not admissible in this case for any purpose. Nor were the prior Texas convictions for burglary and theft admissible for any purpose without additional proof sufficient to bring those prior convictions within the provisions of the Act.
Under the circumstances, we may not say that this inadmissible evidence did not influence the jury in its determination of the guilt of the defendant of the crime charged. The offer and admission of the Arizona record may not be justified on any theory. The very provisions of the Habitual Criminal Act and our decisions as to the necessary proof thereunder result in obvious prejudice to a defendant on trial for a particular offense. This inevitable prejudice is inherent when the habitual criminal issue is injected into a case in the manner provided by law. When, however, evidence is improperly admitted under the guise of proof under the Act, undue prejudice is the most probable result.
It is difficult in a case like this, where the proof adduced by the state is clear and cogent and where defendant offered no evidence, to point specifically to prejudice to defendant (particularly here where, even without any allegation or proof under the Habitual Criminal Act, defendant could have been sentenced to life imprisonment for the offense charged). Nevertheless, we are unwilling to rule that a record of a prior offense which affirmatively shows that it is inadmissible, may be received in evidence without reversible error so long as the state properly proves one of the other prior convictions alleged. It follows that this case must be reversed and remanded for a new trial.
Defendant has not attacked the information, but we have examined it as part of the record proper. Prior to another trial, the amended information should be examined in the light of the recent decision in State v. Franck, Mo.Sup., 260 S.W.2d 52.
Reversed and remanded.
CONKLING, HOLLINGSWORTH and DALTON, JJ., concur.
HYDE, P. J., concurs in result.
VAN OSDOL and LOZIER, CC., concur.
The foregoing opinion by COIL, C., is adopted as the opinion of the court.